State v. Abshire

269 So. 3d 1020
CourtLouisiana Court of Appeal
DecidedMarch 13, 2019
Docket18-717
StatusPublished

This text of 269 So. 3d 1020 (State v. Abshire) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abshire, 269 So. 3d 1020 (La. Ct. App. 2019).

Opinion

KEATY, Judge.

*1022On July 25, 2017, Defendant, Albert Abshire, was charged by bill of information with hit-and-run driving, a violation of La.R.S. 14:100. On November 13, 2017, Defendant withdrew his initial plea of not guilty and entered a plea of guilty to the charged offense. The trial court ordered a pre-sentence investigation report (PSI), which was filed into the record at the December 14, 2017 sentencing hearing. The trial court sentenced Defendant in open court to ten years of imprisonment at hard labor under the provisions of La.R.S. 14:100(C)(2). Defendant timely filed a motion to reconsider sentence. The trial court denied the motion and set a hearing for Defendant to proffer the evidence he would have offered in support of the motion to reconsider.

Defendant now appeals his sentence, alleging that: (1) the sentence imposed "is nothing more than cruel and unusual punishment and, thus, excessive" under U.S. Const. amend. VIII and La.Const. art. 1, § 20 ; and (2) the trial court "erred in making improper and unsubstantiated assumptions in arriving at the proper sentence" and in giving "undue weight and consideration to Appellant's prior record of arrests," in violation of the Due Process Clause of U.S. Const. amend. V.

FACTS

Defendant's appellant brief contains the following facts which the trial court recited at the sentencing hearing:

The evidence is undisputed that on April 29, 2017 Steven Lee was struck by a vehicle operated by Albert Abshire. Steven Lee died as a result of the impact from the vehicle. The evidence is further clear that Albert Abshire knew that he had hit something, whether an individual or something else, stopped his vehicle and noticed the damage; but did not return to the scene. Instead of returning to the scene and giving his identity and attempting to render aid, Abshire drove to his home in Rapides Parish, more than thirty (30) miles away, and attempted to hide his vehicle. The evidence is clear that Abshire was leaving the Paragon Casino at the time that the accident occurred. When contacted by the police Abshire admitted that he "hit something leaving the casino," but claimed that he did not know what he hit. Evidence has been submitted confirming that Abshire stopped at the Chevron Station and looked at the damage to his vehicle, which damage was serious, however, Abshire did not return to the scene and instead drove home.

The PSI contained additional information which is pertinent to this appeal. A woman who witnessed an accident near the Paragon Casino in Avoyelles Parish called 911 to request an ambulance. That woman told *1023a detective from the Marksville Police Department (the MPD) that she saw the victim step into the road from a sidewalk where he was struck by an older model white Chevrolet pickup truck being driven by a white male. According to the woman, the victim was thrown into the air and parts of the truck fell onto the roadway, but the driver of the truck did not stop.

After receiving a phone call indicating that Abshire may have been involved in the accident, Major Eric Jacobs with the MPD reviewed video surveillance from the casino that showed a white truck leaving the casino in the direction of the accident around the time of the accident. The license plate belonged to Abshire. Officers went to Abshire's home where they found a white truck in a locked shed that appeared to be in the process of being repaired. After being fully advised of his Miranda1 rights, Abshire admitted to knowing that he "hit something," but he did not go back to see what had been struck with his vehicle. Based on that information, Abshire was arrested.

Approximately four days after the accident, a second woman advised the MPD that when she was at a Chevron station on the night of April 28, 2017, she saw a white male inspecting damage to the passenger side of a white Chevrolet or GMC truck. She recognized Abshire's picture as the man she saw at the gas station.

DISCUSSION

Assignment of Error Number Two

In his second assignment of error, Defendant argues that he should be resentenced because the "trial court erred in making improper and unsubstantiated assumptions in arriving at the proper sentence to impose" and in giving "undue weight and consideration to [his] prior record of arrests," in violation of his right to due process. We will discuss this assigned error first, because, if it has merit, Defendant's sentence will be vacated, and this case will be remanded to the trial court for resentencing, thus making Defendant's remaining assigned error moot.

In his motion to reconsider sentence, Defendant asserted that his sentence was "excessive, especially for the following reasons:"

1. The lack of a felony conviction;
2. The victim of the defendant's criminal conduct induced or facilitated its commission;
3. The defendant has at least partially compensated the victim of his criminal conduct for the damage or injury he sustained;
4. The defendant had no knowledge that he struck a person when he was driving in his lane of travel at night.

The evidence proffered at the hearing on Defendant's motion to reconsider sentence consisted of brief argument by defense counsel and a brief statement by Defendant. Our examination of that evidence reveals that the arguments presented were limited to the grounds asserted in Defendant's motion to reconsider.

In contrast, Defendant now argues on appeal that the trial court made assumptions based on Defendant's "incomplete arrest record." More specifically, Defendant claims that the trial court improperly assumed that Defendant "had received help from someone in making the charges go away." Defendant further posits that the trial court considered Defendant's "unadjudicated criminal conduct at face value without being provided a full factual basis for the conduct from which the judge could closely evaluate and carefully examine the weight of the evidence."

*1024Under La.Code Crim.P. art. 881.1(E), the failure to make or timely file a motion to reconsider sentence or to include a specific ground for reconsideration precludes a defendant from raising an objection to the sentence or urging any ground not raised in the motion on appeal. See State v. Barling, 00-1241, 01-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331. In State v. Mims , 619 So.2d 1059, 1059-60 (La. 1993), the supreme court explained:

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Bluebook (online)
269 So. 3d 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abshire-lactapp-2019.